Media Defence Fact Sheet Defending the Media in Defamation Cases Defamation can be described in a number of ways but is broadly understood as the communication of a false statement that unjustly causes harm or detriment to legal or natural person's reputation. Defamation laws vary from jurisdiction to jurisdiction. Therefore, the first step in defending any defamation claim is to identify the applicable jurisdiction and system of law in which proceedings are being brought or contemplated, and to take local legal advice. Additionally, certain jurisdictions distinguish between written and oral defamation, which are, for example, known as libel and slander respectively under English law. It is an important precept that the free press, and media more generally, play a vital role in holding governments, state bodies and similarly powerful and influential corporates to account. The right to freedom of expression is at the heart of the reporting and publication that the free press and media does. Therefore, the right to freedom of expression will be at the heart of the defence in any defamation case involving a media organisation or individual. That right is enshrined in a number of international law instruments that we will come on to below. Such rights are sometimes enshrined in national law, and in some cases come into conflict with national defamation laws. Whereas certain jurisdictions recognise defamation as a matter of civil law, others criminalise it. There is a consensus among human rights groups that criminalising defamation has a chilling effect on media organisations, media reporting and therefore on democratic accountability in a way that is antithetical to freedom of expression. Through the concept of unjust harm to reputation, defamation laws tend to measure the right to freedom of expression against the right of a legal or natural person to maintain its, his or her reputation. Therefore, an analysis of the merits of a defamation case will require weighing up the two competing rights. An understanding of the law of defamation therefore also requires an understanding of human rights law jurisprudence. This factsheet sets out certain general principles that may apply and the international and regional law frameworks, which may be relevant, according to the jurisdiction in question. I. International Law (i) Human Rights Law Instruments The United Nations International Covenant on Civil and Political Rights (ICCPR) sets out rights at Articles 17 and 19. Article 17 states: Media Defence Fact Sheet "1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks" Article 19 ICCPR states: 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals." While Article 17 could be used to support arguments made by claimants in defamation claims, defendants in those claims could draw support from on Article 19. It will be apparent that there is some tension between the rights endowed by these two articles, which is expressly acknowledged at 19.3, which states that the right to freedom of expression is qualified by a limited category of competing rights in certain circumstances, which includes the rights of others to their reputations. (ii) Commentary and Interpretation by the United Nations Human Rights Committee Adherence to the ICCPR by signatory States is monitored by the United Nations Human Rights Committee, which has produced guidance and commentary in its General Comment 34. General With regard to the right to freedom of expression and the application of that right the media, the Human Rights Committee stated that: "13. A free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression and the enjoyment of other Covenant rights. It constitutes one of the cornerstones of a democratic society. The Covenant embraces a right whereby the media may receive information on the basis of which it can carry out its function. The free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or Media Defence Fact Sheet restraint and to inform public opinion. The public also has a corresponding right to receive media output. 14. As a means to protect the rights of media users, including members of ethnic and linguistic minorities, to receive a wide range of information and ideas, States parties should take particular care to encourage an independent and diverse media. 15. States parties should take account of the extent to which developments in information and communication technologies, such as internet and mobile based electronic information dissemination systems, have substantially changed communication practices around the world. There is now a global network for exchanging ideas and opinions that does not necessarily rely on the traditional mass media intermediaries. States parties should take all necessary steps to foster the independence of these new media and to ensure access of individuals thereto. 16. States parties should ensure that public broadcasting services operate in an independent manner. In this regard, States parties should guarantee their independence and editorial freedom. They should provide funding in a manner that does not undermine their independence. 17. Issues concerning the media are discussed further in the section of this general comment that addresses restrictions on freedom of expression." Truth as a Complete Defence and Decriminalisation of Defamation As to how the expansive right to freedom of expression fits with the law on defamation, the Human Rights Committee has stated that "Defamation laws must be crafted with care to ensure that they comply with [the right to freedom of expression], and that they do not serve, in practice, to stifle [it]. All such laws, in particular penal defamation laws, should include such defences as the defence of truth. Moreover that "State parties should consider the decriminalization of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty", Defence of Opinion The Human Rights Committee has also stated that that criminal defamation laws should to those forms of expression that are not, of their nature, subject to verification all forms of opinion are protected, including opinions of a political, and that the ICCPR even expression that may be regarded as deeply offensive Public Interest Defence Media Defence Fact Sheet Moreover, the Human Rights Committee has stated that a "public interest in the subject matter of the criticism should be recognized as a defence [to defamation] and "At least with regard to comments about public figures, consideration should be given to avoiding penalizing or otherwise rendering unlawful untrue statements that have been published in error but without malice (iii) Statements by UN Special Rapporteurs Special Rapporteurs are individuals appointed by the UN, who, amongst other things, conduct fact-finding enquiries to investigate and comment on human rights issues. Decriminalisation of Defamation In 2002 the UN Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media and the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and released a joint statement that: Criminal defamation is not a justifiable restriction on freedom of expression; all criminal defamation laws should be abolished and replaced, where necessary, with appropriate The issue is seen as particularly egregious where true statements are criminalised by expansive domestic defamation laws. In 2010 the UN Special Rapporteur on Freedom of Opinion and Expression, OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression and the African released a joint statement on 'Ten Key Challenges to Freedom of Expression in the Next Decade'. It also noted concerns, as in the 2002 joint statement, about the prevalence of criminal defamation laws and in particular that such laws typically have the following features potentially incompatible with freedom of expression: "a) The failure of many laws to require the plaintiff to prove key elements of the offence such as falsity and malice. b) Laws which penalise true statements, accurate reporting of the statements of official bodies, or statements of opinion. c) The protection of the reputation of public bodies, of State symbols or flags, or the State itself. Media Defence Fact Sheet d) A failure to require public officials and figures to tolerate a greater degree of criticism than ordinary citizens. e) The protection of beliefs, schools of thought, ideologies, religions, religious symbols or ideas. f) Use of the notion of group defamation to penalise speech beyond the narrow scope of incitement to hatred. g) Unduly harsh sanctions such as imprisonment, suspended sentences, loss of civil rights, including the right to practise journalism, and excessive fines." Defence of Truth and of Opinion As can be seen, the statement expressed concern about penalising true or unprovable statements of opinion.